A new report from U.N. Special Rapporteur on Human Rights Ben Emmerson looks at international drone strikes and other targeted killings, detailing 30 instances where civilians were harmed by such attacks, allegedly including 300 or more civilian deaths. The product of a year-long investigation, Emmerson's report is not explicitly anti-drone, but he does believe it is imperative to set international legal standards for such strikes.
"If used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict," Emmerson concludes. But there is little accountability when it comes to drone attacks and civilian casualties. Emmerson suggests that any "plausible indication …that civilian casualties may have been sustained" should lead the responsible state "to conduct a prompt, independent, and impartial fact-finding inquiry and to provide a detailed public explanation."
That's crucial, explains Sarah Knuckey at Just Security. "In essence," she writes, "the report states that it is governments who now bear the legal burden of explaining the strikes."
Emmerson also addresses the need for intergovernmental discussion about drone-related legal issues on which there is currently no clear international consensus or "where current practices and interpretations appear to challenge established legal norms." Conor Friedersdorf summarizes those legal issues at The Atlantic, arguing that as drone use proliferates, the norms the Obama administration has established could be disastrous, internationally and for Americans:
1) Does the right to self-defense under international law entitle a state to kill people in another state without its permission, if the target is an armed group that poses a direct and immediate threat of attack, but has no connection to its host state? If so, what conditions must be present to justify such an attack? Does it arise when the host state is judged unable or unwilling to prevent the threat from materializing?
2) Is the principle of self-defense "confined to situations in which an armed attack has already taken place," or does it entitle a state to act preemptively on the territory of another state "where it judges that there is an imminent risk of attack to its own interests?" And if so, how is the standard of imminence to be defined?
3) International law decides whether or not a state of "non-international armed conflict" has come into existence based in part on the intensity of hostilities. Does this test "require an assessment of the severity and frequency of armed attacks occurring within defined geographical boundaries?" When applying the test, "is it legitimate to aggregate armed attacks occurring in geographically diverse locations in order to determine whether, taken as a whole, they cross the intensity threshold?" If a state can be engaged in a non-international armed conflict with a non-state armed group that operates transnationally, does that mean a non-international armed conflict can exist without finite boundaries?
Other international legal issues Emmerson identifies: whether humanitarian law allows targeting people "directly participating in hostilities who are located in a non-belligerent state" and under what circumstances; whether the pattern, frequency, and intensity of Al Qaeda attacks still make them equivalent to "a state of armed conflict"; whether the Red Cross's standard for determining which individuals may be targeted by lethal force is adequate; whether individuals who have ceased active involvement in hostilities are still legitimate targets; whether providing food, financing, or logistical support amounts to "direct participation in hostilities" for targeting purposes; and when legitimate military targets must be captured rather than killed.
Ultimately, Emmerson offers two specific recommendations: 1) States that conducted any of the 30 documented civilian-harming drone strikes should publicly explain them, and 2) the U.N. Human Rights Council should establish a panel of experts to report on legal issues arising from the use of drones for targeted killings.